Chicago-Kent Law Review
Volume 50 | Issue 3
Article 9
December 1973
Constitutional Law - An Involuntarily Detained
Mental Patient's Informed Consent Is Invalid for
Experimental Psychosurgery
Candace J. Fabri
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Candace J. Fabri, Constitutional Law - An Involuntarily Detained Mental Patient's Informed Consent Is Invalid for Experimental
Psychosurgery , 50 Chi.-Kent. L. Rev. 526 (1973).
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DISCUSSION OF RECENT DECISIONS
DETAINED
INVOLUNTARILY
LAW-AN
CONSTITUTIONAL
MENTAL PATIENT'S INFORMED CONSENT IS INVALID FOR EXPERIMENTAL PSYCHOSURGERY-Kaimowitz and .ohn Doe v. Department of Mental Health for the State of Michigan, No. 73-19434-AW
(Mich. Cir. Ct., Wayne County, July 10, 1973).
"We have not yet seen what man can make of man"' are the closing
words of B. F. Skinner's Beyond Freedom and Dignity, the apology of behavior modification psychology. But in hundreds of mental institutions
across the country the meaning of that sentence is belied. We can see what
man has made of man, if we choose to look. Recently a Michigan court
has chosen to look, and the resulting opinion is both remarkable and provocative. The decision in the case of Kaimowitz and John Doe v. Department of Mental Health for the State of Michigan2 is remarkable as it is
the only known case dealing with psychosurgery, 3 an operative procedure
which has been performed on more than fifty thousand American mental
patients in the last thirty years. The Kaimowitz decision is provocative as
it adopts a constitutional argument to invalidate an informed consent document signed by a willing patient. The purpose of this discussion is threefold: to examine the use of psychosurgical procedure and its effects on the
experimental subject, to explain and evaluate the reasoning of the Kaimowitz decision, and to explore possible legislative solutions to the legal questions posed by psychosurgery on confined persons.
I.
PSYCHOSURGERY:
USE AND EFFECT
It is necessary to distinguish psychosurgery from all other modes of
therapy used in the treatment of the mentally ill. The conventional modes
of treatment, psychoanalysis, 4 group therapy, 5 and environmental therapy6
1. SKINNER, BEYOND FREEDOM AND DIGNITY, 206 (1971).
2. Kaimowitz and John Doe v. Department of Mental Health for the State of
Michigan, No. 73-19434-AW (Mich. Cir. Ct., Wayne County, July 10, 1973). [Hereinafter referred to as Kaimowitz.]
3. A Kentucky woman, blinded by psychosurgery, settled her suit out of court
for six hundred thousand dollars. In Virginia legal action is being considered to pre-
vent psychosurgery on a self-mutilating mental patient.
Psychosurgery, 225 J.A.M.A.
1035 (1973).
4. The recognition of the basis of mental disruption is discovered through therapy dialogues. WATSON, PSYCHIATRY FOR LAWYERS (1968).
5. The recognition and control of mental disorders through the verbal and emotional interaction of two or more persons and a therapist. BLINDER, PSYCHIATRY IN
THE EVERYDAY PRAcTICE OF LAW (1973).
6. This therapy focuses on alteration of the emotional climate surrounding the
DISCUSSION OF RECENT DECISIONS
rely on verbal interaction between the subject and therapist. They require
cooperation from the patient who thereby controls his own therapeutic progress. In the past four decades these conventional modes of treatment have
been augmented or entirely replaced by physical methods such as psychopharmacology, 7 electroshock treatments, 8 and psychosurgery. 9 These organic treatments do not require cooperation from the patient, and may in
fact be administered against his will. In each, there is a risk of seriously
adverse effects on the subject. The prolonged use of tranquilizing or neuroleptic drugs may cause a syndrome of nervous disorders. 10
treatments may result in broken or fractured bones."
Electroshock
However, psycho-
surgery removes or destroys irreplaceable brain cells and tissues.
ation is completely irreversible.
The oper-
The patient's brain cannot be treated with
drugs or placed in a plaster cast to be restored to its previous state.
Thus,
psychosurgery occupies a unique position in the continuum of psycho-medical treatment for the mentally ill.
The term psychosurgery refers to a variety of operative procedures
which attempt to modify patient behavior by surgical techniques. The most
familiar form of psychosurgery is the lobotomy; the amputation of the prefrontal, bimedial, or transorbital portions of the brain. Included within the
scope of psychosurgery are those operative procedures which cauterize, place
lesions, or inject foreign substances into specific areas of the brain. 12 Psychosurgery has been used to modify such diverse behavior as homosexuality, frigidity, hyperactivity, schizophrenia, acute depression, criminal activity, compulsive gambling, alcoholism, and drug addiction.' s
Although psychosurgery has been performed on more than fifty thousand patients, it is difficult to assess its effect. 14 Because of the wide variety
patient and employs occupational therapy workshops, halfway houses, and community
release programs. DERSHOwiTZ, GOLDSTEIN, KATz, PSYCHOANALYSIS, PSYCHIATRY, AND
THE LAW 713 (1967).
7. The treatment of mental disorders with any of the following types of drugs:
anti-psychotics, anti-depressants, tranquilizers, hormones, and neuroleptics. Crane, Clinical Psychopharmacology, 181 SCIENCE 124 (1973).
8. Developed in Italy in the 1930's, this treatment utilizes an alternating electrical current passed through the patient's brain to produce a convulsive shock, supra
note 6, at 713.
9. The amputation or destruction of brain cells and tissues, supra note 6, at 713.
10. The resultant nervous syndrome, tardive dyskinesia, is characterized by drowsiness, jaundice, impotence, loss of muscle control, and excessive weight gain. See Tardive Dyskinesia, 129 AM. J. PsYcHITRY 466 (1972).
11. The incidence of broken or fractured bones among patient's receiving this
therapy is estimated at one-half of one per cent, supra note 6, at 714.
12. Refinements on the classical lobotomy are the cingulotomy (lesions placed in
the cingulum portion of the brain), thalamectomy (cauterization of the lower brainstem nuclei connected to the cortical areas), and diathermy (injection of foreign substances such as olive oil into the brain). Trotter, A Clockwork Orange in a California
Prison, 101 Sci. NEws 174 (1972).
13. Id. at 175.
14. Medical literature in this area is exceptionally biased and it is difficult to
CHICAGO-KENT
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of techniques that are utilized to eliminate an even greater variety of behavioral problems, no conclusive quantitative or qualitative determinations
can be advanced. Some longitudinal studies' 5 have indicated that the psychosurgical patient experiences a profound reduction in the human functions related to the frontal lobes-insight, empathy, sensitivity, self-awareness, judgment, and emotional responsiveness.' 6 Critical observers have
characterized these patients as "vegetables" and "lost souls".17 Conversely,
without this operation each of these patients was doomed to a lifetime of
confinement in a mental institution. Psychosurgery has enabled the rehabilitation and release of many otherwise hopelessly ill persons.
It is difficult to estimate the number of psychosurgical operations performed yearly in America, as the procedures and results are not necessarily
published in medical journals. It appears that between four hundred and
six hundred such operations are performed annually.' 8 International medical literature indicates that psychosurgery is being used increasingly to control antisocial behavior, aggression and hyperactivity.' 9 It is inescapable
that psychosurgery has come to be regarded as commonplace in the medical world. However, the Kaimowitz decision and pending legislation may
reverse this spiraling trend.
II.
A.
THE KAIMOWITZ DECISION
The ProposedPsychosurgicalExperiment
In 1972, the Michigan state legislature allocated state funds for an experimental program to "investigate the results of medical versus surgical
treatment of patients committed to the state hospital system for the criminally insane because of severe uncontrollable emotional outbursts. ' 20 Several individuals were to be chosen as subjects for the medical portion of the
experiment, 21 with the single qualification that they suffer from severe uncontrollable outbursts. A John Doe was to be chosen for the surgical portion
distinguish fact from opinion.
Compare DELGADO,
PHYSICAL CONTROL OF THE MIND--
TOWARD A PSYCHO-CMLIZED WORLD (1969); Andy, Neurosurgical Treatment of Abnormal Behavior, 252 AMER. J. MED. ScI. 232 (1966), with Breggin, Lobotomies: An
Alert, 129 AM. J. PSYCHIATRY 97 (1972); Breggin, Lobotomies Are Still Bad Medicine,
8 MED. OPIN. 32 (1972).
15. Freeman, Frontal Lobotomy: Long Follow-up in 415 Cases, 119 BRIT. JOUR.
PSYCHIATRY 621 (1971).
16. 118 CONo.REc.E1605 (daily ed. Feb. 24, 1972).
17. See note 3 supra.
18. 118 CONG. REc. E1602 (daily ed. Feb.24, 1972).
19. Balasubramaniam, Kanaka, Ramanugam, Ramanurthi, Surgical Treatment o1
Hyperkinetic and Behavior Disorders,54 INT'L SURGERY 18 (1970).
20. Appendix to opinion, titled Study of the Treatment of Uncontrollable Aggression.
21. The proposed study would compare surgical results with those obtained by the
prolonged use of cyprotrone acetate, an anti-androgen drug, in suppressing aggressive
behavior. Id. at 2.
DISCUSSION OF RECENT DECISIONS
of the experiment.2 2 He was to be a male over twenty-five years of age
with an I.Q. of at least eighty, who had been confined within the state mental
health system for five years or more. 23 Further, John Doe must have experienced several attacks of severe aggressive behavior. He must have resisted
all conventional modes of treatment. The proposal required John Doe's
24
voluntary informed consent, in addition to that of his parent or guardian.
To further protect John Doe, the project abstract established a review committee of physicians to evaluate the candidate's suitability for the surgical
procedure. A second review committee, consisting of a clergyman, a law
professor, and a community representative, was established to insure the validity of the informed consent document signed by the subject and his
guardian.
Within the Michigan State Hospital System, there was one John Doe
who met all the qualifications for the state funded project. That man was
Mr. Louis Smith. He had been committed without trial to the Ionia State
Mental Hospital in 1955 for the suspected murder and rape of a student
nurse at Kalamazoo State Hospital where he had previously been confined.
The surgical procedure was fully explained, and both Louis Smith and his
parents signed the consent document. Relying on the validity of this document and the ratification by both review committees, the first step of the experimental psychosurgery, electrodepthography, was scheduled for January
15, 1973.
Shortly before the scheduled operation, the plaintiff in this action, Gabe
Kaimowitz, a legal worker in Detroit, became aware of the proposed experimental study. He disseminated this information to the mass media, and extensive publicity followed. Immediately thereafter, this action was brought
on a writ of habeas corpus alleging that Louis Smith was illegally held under
the Michigan Criminal Sexual Psychopathic Persons Law. 23 On the request
of counsel, a three judge court was empanelled pursuant to Michigan civil
procedure. 28 On March 23, 1973, that court determined that Louis Smith's
confinement in the Ionia State Hospital was illegal. He was removed from
22. The surgical procedure requires the implantation of electrodes, referred to as
electrodepthography, to test the patient for electrical stimulation of cortical areas. After isolating the abnormality, these electrodes are to be removed and the abnormality
will be treated by electro-coagulation or block resection. Id. at 3. For a complete
medical description of the proposed operation see Psychosurgery, 225 J.A.M.A. 915
(1973).
23. Appendix to opinion at 7.
24. Id. at 8.
25. C.L. 780.501 et seq. Criminal Sexual Psychopathic Person:
any person who is suffering from mental disorder and is not feebleminded,
which mental disorder is coupled with criminal propensities to the commission
of sex offenses is hereby declared to be a criminal sexual psychopatic person.
This statute was repealed by P.A. 1968, No. 143 ss.2 August 1, 1968 and Smith was
thereafter detained pursuant to C.L. 330.35(b) which governs the parole and discharge
of criminal sexual psychopathic persons.
26. Kaimowitz, supra note 2, at 6.
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the jurisdiction of the Michigan Department of Mental Health whereupon he
immediately revoked his consent to the proposed surgery. The court found
that, as the issue of the validity of a mental patient's consent to psychosurgery was likely to present itself again for adjudication, the question was
not moot.2 7 The legal issues raised were decided in the plaintiff's favor
in the form of a declaratory judgment.
B.
The ConstitutionalBasis and Informed Consent
The declaratory judgment addresses itself to a single issue:
After the failure of established therapies, may an adult or a legally appointed guardian if the adult is involuntarily detained at
a facility within the jurisdiction of the Department of Mental
Health for the State of Michigan, give legally adequate consent to
an innovative and experimental surgical procedure on the brain,
if there is demonstrable physical abnormality of the brain and if
the procedure is designed to ameliorate behavior which is either
personally tormenting to the patient or so profoundly
disruptive
28
that the patient cannot safely live or live with others?
The three judge Kaimowitz court answered this question in the negative.
As a necessary preface to its disposition of this case, the court emphasized that it is clearly within the police power of the state to control a citizen's right to consent to certain physical activities that conflict with public
policy. Thus the state may withhold from a person the right to consent to
such acts as suicide or mayhem upon himself. In England, suicide was a
felony punishable by ignominious burial. 29 By American common law
suicide is generally regarded as malum in se and a grave public wrong.
Similarly, consent has never been recognized as a valid defense to a charge
of mayhem.30 This approach is the outgrowth of a feudal attitude that a
subject owed to the king certain duties that suicide or mayhem upon oneself
would render impossible to perform. In America, this attitude, commingled
with a traditional reverence for life, has defined the relationship of the citizen to the state in this area. Most jurisdictions regard self-mutilation or
suicide as a crime, albeit unpunishable, thus denying the citizen the right
to consent to it.8 1
Conversely, the state may dictate and require consent on the part of
an individual to certain physical acts consistent with public policy. This
situation most often presents itself in connection with the religious beliefs of
Jehovah's Witnesses and Christian Scientists. Where a religious scruple interferes with the administration of necessary medical treatment, that treat27. See United States v. Phosphate Export Association, 393 U.S. 199 (1968).
28.
29.
30.
31.
Kaimowitz, supra note 2, at 8.
4 Geo.IV, Ch.52 ss.1.
Annot., 86 A.L.R.2d 268 (1957).
Burnett v. Illinois, 204 111. 208, 68 N.E. 505 (1903).
DISCUSSION OF RECENT DECISIONS
ment is judicially mandated despite the individual's objection. Without exception, if the patient is a minor,3 2 a pregnant woman, 3 a mother, 3 4 or a
legal incompetent as a result of the illness, 35 courts refuse to recognize that
patient's right to consent to death by lack of treatment.3 6 Relying on this
judicially implemented state police power, the Kaimowitz court invalidated
the consent document signed by Louis Smith. This determination effectively
denies to all involuntarily confined persons under the jurisdiction of this
Michigan court the right to consent to this operative procedure.
Experimental mind surgery performed under government auspices is
an issue fraught with political and moral considerations. The Kaimowitz
court attempted to circumvent these considerations by framing its decision
in the traditional language of informed consent. Informed consent focuses
on information (what a reasonable patient must know to make an intelligent decision) and assent (sufficient indication that the patient has granted
permission for the medical treatment). 37 In addition to these two criteria, California 38 and Oregon 3 a require the physician to disclose to the patient
any and all feasible alternative treatments for his illness. This is the approach which has been used in evaluating the validity of informed con40
sent to psychosurgery by a nonconfined person.
However, the Kaimowitz court posits a more stringent test. As "there
are compelling constitutional considerations that preclude the involuntarily
detained mental patient from giving effective consent to this type of surgery,"' 41 that consent must be given competently, knowingly, and voluntarily. These three requirements constitute a further limitation on the requirements of informed consent indicated above. They are the essential elements for an effective waiver of a constitutional right. As articulated by
the Supreme Court, "waivers of constitutional rights not only must be voluntary, but must be knowing intelligent acts done with sufficient awareness of
the relevant circumstances and the likely consequences." 42 Informed consent is a misnomer in this case, as the Kaimowitz court has determined that
the right involved is of constitutional proportion and consequently the waiver
must meet constitutional standards.
32. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952);
Mitchell v. Davis, 205 S.W.2d 812 (Tex. Civ. App. 1947).
33. Raleigh-Fitkin Hosp. v. Anderson, 42 N.J. 421, 201 A.2d 537 (1964).
34. J.F. Kennedy Hosp. v. Heston, 58 N.J. 576, 279 A.2d 670 (1971); Application of the President of Georgetown Univ., 331 F.2d 1000 (D.C. Cir. 1964).
35. United States v. George, 239 F. Supp. 752 (D. Conn. 1965).
36. In re Brook's Estate, 32 I11.
2d 361, 205 N.E.2d 435 (1965).
37. Waltz, Informed Consent, 64 Nw. L.R. 628 (1969).
38. Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1 (1972).
39. Gitchell v. Mansfield, 269 Or. 174, 489 P.2d 953 (1971).
40. Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788 (1968).
41. Kaimowitz, supra note 2, at 32.
42. Brady v. United States, 397 U.S. 742, 748 (1970); Escobedo v. Illinois, 378
U.S. 478 (1963); Miranda v. Arizona, 384 U.S. 436 (1965); Johnson v. Zerbst, 304
U.S. 458 (1938).
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The three compelling constitutional considerations noted by the Kaimowitz court are the rights of free expression guaranteed by the First
Amendment, the right of privacy contained in the penumbra of the First,
Fourth, and Fifth Amendments, and the right to be free from cruel and
unusual punishment protected by the Eighth Amendment. The court found
the requisite state action to permit constitutional analysis, as the patient
had been confined in a state mental hospital and the project had been financed by order of the state legislature with state funds.
The court's approach to the First Amendment question is a revolutionary one. It suggests that the First Amendment encompasses within its perameters both the communication and the generation of ideas. "To the extent that the First Amendment protects dissemination of ideas and expression of thoughts, it equally must protect the individual's right to generate
ideas."' 43 The former right is meaningless without the viability of the latter.
In support of this position, the court borrowed the words of Mr. Justice
Holmes:
The ultimate good desired is better reached by free trade in ideas
-that the best test of truth is the power of44the thought to get
itself accepted in the competition of the market.
Free trade in ideas necessitates free thought. "Those who won our independence believed that freedom to think as you will and to speak as you
think are means indispensible to the discovery and spread of political
truth. '45 Extrapolating from these premises, the court agreed with the
words of Mr. Justice Cardozo: "Implicit in the very notion of liberty is
the liberty of the mind to absorb and to beget."' 46 Arguably, the proposed
psychosurgery on Louis Smith would violate this First Amendment right to
beget ideas.
The second constitutional basis considered by the court is the right of
privacy. This right is the logical extension of the Fourth Amendment guarantees made applicable to the states through the Fourteenth Amendment.
As expressed by Mr. Justice Brandeis: "The makers of our Constitution
conferred as against the government the right to be let alone-the most
'4
comprehensive of rights and the right most highly valued by civilized men." 7
48
This right to be left alone encompasses the marital bed, the sexual habits
of consenting adults, 49 and the termination of pregnancy. 50 Does it, how43. Kaimowitz, supra note 2, at 32.
44. Abrams v. United States, 250 U.S. 616, 630 (1919).
45. Whitney v. California, 274 U.S. 357, 375 (1927).
46. Cardozo, The Paradoxes of Legal Science, Columbia University Lectures, reprinted in SELECTED WRITINGS OF BENJAMIN NATHAN CARDozo 318 (1947).
47. Olmstead v. United States, 277 U.S. 438, 478 (1928).
48. Griswald v. Connecticut, 381 U.S. 479 (1962).
49. Stanley v. Georgia, 395 US. 557 (1969).
50. Roe v. Wade, 410 U.S. 113 (1973).
DISCUSSION OF RECENT DECISIONS
ever, also include the integrity of the mind? An affirmative answer to this
question has been given by the Ninth Circuit. In Mackey v. Procunier,51
the federal court held that the forcible injection of an experimental drug5 2
into a prisoner in an attempt to modify criminal behavior constituted "impermissible tinkering with the mental processes." 5 3 The Kaimowitz opinion
notes that, as psychosurgery is more intrusive than the treatment condemned
in Mackey, it a fortiori falls within the area protected by the right of privacy.
The court refused to consider the plaintiff's third constitutional argument that this psychosurgical experiment is a violation of the Eighth Amendment prohibition of cruel and unusual punishment.5 4 This is because Louis
Smith, the surgical participant was a criminal imprisoned in the state mental
health system. He stood in limbo between the absolute application of the
right to treatment approach55 employed in the investigation of medical treatment for mental patients, and the cloak of administrative discretion automatically employed in the investigation of medical treatment for criminal
prisoners.5 6 However, in general, the Michigan courts regard the incarcerated psychopathic criminal as more akin to a mental patient than a convict. They acknowledge the right to treatment of those confined under the
Criminal Sexual Psychopathic Law.5 7 Thus, an analysis of the constitutional
argument that the proposed psychosurgery is cruel and unusual punishment
was inappropriate in this Michigan jurisdiction.
The determination that the psychosurgery was a violation of constitutional guarantees necessitated evaluation of the three components for the
valid waiver of a constitutional right; competency, knowledge, and voluntariness. The first component examined by the court was competency.
Questions of competency in institutionalized persons are always questions of
degree. Undoubtedly, a patient incompetent to stand trial may be sufficiently competent to consent to medical or psychological treatments. Ostensibly, Louis Smith was competent to make such a choice. Intelligence
tests demonstrated that his I.Q. exceeded eighty. His testimony indicated
that at the time he signed the consent document he understood the procedures and the risks of the electrodepthography and the stereotactic surgery.
51. 477 F.2d 877 (9th Cir. 1973).
52. The drug used in the aversion therapy was succinycholine. The reaction was
termed breath-stopping, paralyzing, and a simulation of a heart attack. Id. at 878.
53. Id.
54. See generally Robinson v. California, 370 U.S. 660 (1963); Furman v. Georgia, 408 U.S. 238 (1972); Holt v. Sarver, 309 F. Supp. (E.D. Ark. 1970).
55. See generally Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966); Wyatt v.
Stickney, 325 F. Supp. 781 (D.C. Ala. 1971); Note, The Right to Treatment, 57 Geo.
L.R. 782 (1969); Note, The Right to Treatment, 36 U. Chi. L.R. 760 (1969).
56. Haynes v. Harris, 344 F.2d 463 (8th Cir. 1965); Peek v. Ciccone, 288 F. Supp.
329 (W.D. Mo. 1968).
57. Silvers v. People, 22 Mich. App. 1, 176 N.W.2d 702 (1970).
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Yet, the same testimony indicated that since 1955 Louis Smith has not been
permitted to make any decision of importance. The manner in which he
has spent his time, energy and money have been unilaterally dictated by
the hospital staff. For eighteen years he has been incompetent to decide
whether to go on a picnic, to walk on hospital grounds, or to turn on the
light in his room. 58 Louis Smith experienced a gradual erosion of his decision making processes, a phenomenon the court termed "institutionaliza-
tion."'5 9 Prolonged incarceration in a mental facility had diminished his
capacity for evaluation and judgment. Despite outward manifestations of
competency and lucidity, the court reasoned that a priori, a patient whose
every decision has been superimposed by administrative order cannot independently decide to consent to experimental psychosurgery.
A more perplexing legal question is posed by the court's axiomatic invalidation of the consent document signed by Louis Smith's parents. The
record contains a factual dispute as to the extent of information given to the
parents. For the purposes of the declaratory judgment, however, the court
assumed that sufficient evidence was revealed to them to enable them to
make an intelligent choice. Yet, the court found this intelligent choice to be
legally ineffective in the psychosurgery situation. "The guardian or parent
cannot do what the patient absent a guardian would be legally unable to
do."6 0° With this comment, the court summarily dismisses any possibility
of the validity of the parent's consent. If this were a simple contract question, that proposition might be acceptable. The guardian of an incompetent
or a minor cannot legally bind that person to more than a contract voidable
at his option. 61 However, if a contract for medical treatment for the incompetent or minor is involved, the signed consent of a parent or guardian
is binding. 62 The Kaimowitz decision avoids this dilemma by adhering to
the constitutional position that ordinarily only the individual can effectively
6 3
waive his constitutional rights.
The second component required for the valid waiver of a constitutional
right is knowledge. In criminal cases, this term has been construed to mean
that the suspect or criminal must be informed that a right exists and he
must understand the consequences of the waiver. 4 The requirement of
the Kaimowitz court is more exacting. The subject must be informed of all
possible repercussions. But, as "the facts surrounding experimental brain
58.
59.
60.
61.
62.
63.
64.
Kaimowitz, supra note 2, at 26.
Id. at 25.
Id. at 26.
Luka v. Lowrie, 171 Mich. 122, 136 N.W. 1106 (1912).
Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99 (1935).
Gurlseki v. United States, 405 F.2d 253 (5th Cir. 1968).
Escobedo v. Illinois, 378 U.S. 478 (1963).
DISCUSSION OF RECENT DECISIONS
surgery are so profoundly uncertain," 65 knowledgeable consent is a practical
impossibility.
In determining that the nature of the operation itself prevents knowledgeable consent, the court relies on the Ten Nuremberg Standards for Human Experimentation, codified in United States v. Karl Brandt.6 6
The ten
principles were advanced to satisfy moral, ethical, and legal constraints.
The subject must give voluntary consent. No experiment is to be conducted
if there is reason to believe that a disabling injury or death will result.
The experiment must avoid any unnecessary mental or physical suffering.
The degree of risk may never exceed the humanitarian importance of the
study. The experiment must yield results that are unprocurable by other
methods of study. It must be preceded by extensive animal study. Adequate preparation must always be made. Only qualified persons may conduct
the experiment. If at any time the subject wishes to withdraw from the
experiment, the project must terminate. If there is any indication of danger
to the subject, the person in charge must terminate the experiment.
These Nuremberg standards conflict with the nature of Smith's detainment and with the nature of the proposed psychosurgery itself. The Kaimowitz court adopted the "risk-benefit" formula that is the underpinning
of the principles enumerated above. The inevitable risk is that the operative procedure will result in mental aberration and loss of certain higher
cognative functions. Only the surgical subject takes this risk as the medical
participants suffer negligible side effects. The predictable benefit is the
statistical evaluation of medical versus surgical effectiveness in controlling
socially undesirable aggressive behavior. The juxtaposition of this risk and
-this benefit places the proposed experiment outside the Nuremberg guidelines.
The last component for a valid constitutional waiver is voluntariness.
an
institutional setting, there is no such thing as a volunteer. Louis
In
Smith was offered the opportunity to obtain his release from the State Department of Mental Health. Losing a portion of his brain was a small
price to pay for that freedom. This type of "free" choice is expressly prohibited by the Nuremberg Standards.
The person involved must have the legal capacity to consent. He
should be so situated as to be able to exercise free power of choice
duress,
without the intervention of any element of fraud, force,
67
overreaching, or ulterior forms of constraint or coercion.
The institutional atmosphere is inherently coercive, and the lack of meaningful alternatives can operate as an ulterior constraint. This ulterior con65. Kaimowitz, supra note 2, at 25.
66. United States v. Karl Brandt, reported in THE MEDICAL CASE, U.S. Government Printing Office (1948) and reprinted in KATZ, EXPERIMENTATION wrrIH HUMAN
BEINGS, at 305-07 (1972).
67. Id.
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straint is sufficient to vitiate the consent of an involuntarily confined mental
patient.
The Kaimowitz decision, predicated on the theory of constitutional
waiver, may have immeasurable ramifications. 68 However, this legal theorization is not irrefutable. In several important respects the Kaimowitz
decision is subject to criticism.
C.
Evaluating the Kaimowitz Decision
The Kaimowitz decision must be evaluated on two levels. Is the court's
constitutional approach valid and defensible? Is this approach necessary
to reach the conclusion that the proposed psychosurgery should not be performed? The Kaimowitz approach to the First Amendment is unprecedented,
but not unsound. In providing that Congress shall make no law in certain
protected areas of speech, assembly, press, and religion, the First Amendment operates as a restriction on the power of government as it relates to
the individual. The Kaimowitz decision has expanded the spectrum of man's
activity to encompass not only speaking, meeting, printing, and worshipping,
but also, thinking. In the twentieth century, thinking is an activity susceptible
of being measured and controlled. As thinking is the nucleus of all other
activity, it is equally deserving of protection. If the psychosurgery itself is
a violation of constitutional guarantees, the validity of the consent or waiver
must be measured by constittuional requirements. 9
The court relies on the theory that the right to think is implicit in the
right to speak. If this position is to be tenable, the new right to generate
ideas must necessarily fit within the framework of existing law regarding
the right of free speech. First Amendment rights have never been absolute.
Certainly there is no First Amendment right to encourage the "commission
of a crime" or to utter "fighting words." 70 This exception to the broad
language of the First Amendment is often phrased as follows: if the speech
activity creates a clear and present danger of a substantive evil it is not
constitutionally protected. 71 By the Kaimowitz theory, thoughts and thought
processes are protected by the First Amendment. However, criminal and
anti-social thoughts that prompt aggressive behavior may create a clear and
present danger of a substantive evil. It may be argued, therefore, that un68. This informed consent/constitutional waiver approach may be applied to experiments in prisons. See Mitford, Experimentation Behind Bars, 231 ATLANTIC 64
(1973). Further this theory may be used in possible suits by Alabama girls who were
sterilized without their parents' understanding of the procedure and by South Carolina
women refused obstetrical care unless they accepted sterilization. In both situations
the health clinics involved were operated by the Department of Health, Education, and
Welfare. Chicago Sun-Times, Sept. 21, 1973, at 24, col. 1.
69. See generally SCHWARTZ, CONSTITUTIONAL LAw, 265 (1972).
70. Cox v. Louisiana, 379 U.S. 559, 562 (1965).
71. Schenck v. United States, 249 U.S. 47, 52 (1919); Dennis v. United States,
341 U.S. 494 (1951).
DISCUSSION OF RECENT DECISIONS
controlled criminal and anti-social thoughts, such as those which led Louis
Smith to rape and kill a student nurse, fall outside the constitutional guarantee. Certain thoughts like certain speech activities may not be protected.
An analysis of this highly sensitive question is well behond the scope of this
discussion. However, it is probable that any court attempting to adhere to
the constitutional approach advanced in Kaimowitz will be faced with this
issue.
The right of privacy, a derivation from constitutional guarantees, delineates federal or state power. In this respect the language of Stanley v.
Georgia is illuminating:
Our whole constitutional heritage rebels at the thought of giving
government the power to control men's minds. Whatever the
power of the state to control dissemination of ideas inimical to
on
public morality, it cannot constitutionally premise legislation
72
the desirability of controlling a person's private thoughts.
State funded experimental mind surgery is undoubtedly a violation of the
right of privacy. It is only permissible on detained populations if this right
is competently, knowingly, and voluntarily waived.
The absence of any of these three elements vitiates the validity of the
constitutional waiver. The Kaimowitz court took cognizance of the reality
of modem mental institutions in determining that a confined patient loses
his capacity to make an intelligent decision. It took cognizance of the reality of the state of medical science in determining that the experimental
nature of the psychosurgery obviates knowledgeability. And, the court
took cognizance of the reality of confinement in determining that an inmate's choice is not truly voluntary. Legal precedent coincides with reality
in the first two elements, but it does not in the third. It is not at all unusual or illegal for an institution to maintain certain prerequisites for the
release of the mentally or criminally confined. Work-release candidates
may be required to consent to the administration of antabuse, a drug which
induces nausea when alcohol is consumed. 73 The release of sexual offenders may be predicated on consent to take an anti-androgen drug that
prevents erection. 74 Sterilization may be required for feebleminded persons
prior to release from a mental institution, 75 or for criminals, as an alternative to prison sentences. 7 6 Typically, courts view these options as being voluntarily chosen as the individual need only agree to take drugs or be ster72. Stanley v. Georgia, 395 U.S. 557, 565-66 (1969).
73. Shelby Penal Farm Inmates v. Hyden, No. 73-192 (W.D. Tenn. May 16,
1973).
74. Field, Drugs and the Sex Offender, 13 Man. Sci. LAw 195 (1973).
75. In re Cavitt, 183 Neb. 243, 159 N.W.2d 566 (1966).
76. In re Andrada v. Southern Pasadena Municipal Court, 33 U.S.L.W. 3278, cert.
denied, 360 U.S. 953 (1965); People v. Tapin, No. 73313 (Santa Barbara Super. Ct.,
July 7, 1965).
CHICAGO-KENT
LAW REVIEW
ilized if he or she wishes to be released. "The choice is (his or) hers."177
In none of these examples has a court found that the coercive atmosphere
of the institution vitiates the patient's or offender's consent. Reality dictates
that freedom, coupled with any prerequisite, is always preferable to confinement. But perhaps this position is not legally justifiable. However, as
the waiver given by Smith lacked competency and knowledgeability it is invalid despite the possibility that it was, in a legal sense, volitional.
Could the Kaimowitz court have reached the same answer to this
complex political and moral question within the framework of the informed
consent doctrine? The two criteria for valid informed consent are that the
patient has sufficient information to make an intelligent choice, and that
the patient manifests his permission for the treatment. The facts in Kaimowitz indicate that these two requirements have been satisfied.
Ordinarily, the doctrine of informed consent requires that the doctor
give to the patient all the information he has and can obtain regarding the
proposed treatment. If the doctor reveals that the procedure is practicable,
that the risks can be estimated, and that the results are predictable, the patient's informed consent is valid. The criterium does not test information
per se, but rather, it tests disclosure. To illustrate this, assume that a surgeon informs his patient that the only way to restore him to his previous
state of health is an experimental operation with only a marginal chance of
success. If the surgeon outlines the procedure, risks, and probable results,
there is sufficient disclosure to permit the patient to take the risk if he
chooses to do so. 78 This illustration coincides exactly with the facts in the
Kaimowitz case. Under an informed consent approach, without the stringency of the constitutional requirements, it is possible that the psychosurgery
could have been performed without any legal repercussions.
The other necessity for valid informed consent is a manifestation that
the patient has given permission for the treatment to be performed. Absent a constitutional theory of personal waiver, there is no reason that the
consent of his parents should not bind Louis Smith. In similar medical treatment situations, parental consent binds the incompetent. For electroshock
treatment the consent of a parent or guardian operates to bar subsequent litigation for assault and battery.79 Admittedly, the gravity of the proposed psychosurgery exceeds that of the electroshock treatments. The dimension
and seriousness of the treatment should logically effect the stringency of
the test for comprehension. It should not, however, reallocate the burden
and the right to consent from the guardian to the incompetent. Under an
77. See note 75 supra at 568.
78. Although it is said that a doctor experiments at his own peril it is generally
accepted that a patient may consent to an experimental procedure if fully informed
of the risks involved.
Slater v. Baker, 95 Eng. Rep. 860 (K.B. 1767); Fortner v. Koch,
272 Mich. 273, 261 N.W. 762 (1935).
79. Farber v. Oklon, 40 Cal. 2d 503, 254 P.2d 520 (1953).
DISCUSSION OF RECENT DECISIONS
informed consent approach, the psychosurgery in Kaimowitz could have been
performed.
In conclusion, the constitutional premise of the Kaimowitz decision is
both valid and defensible. It recognizes both the reality of Louis Smith's
incompetence to consent to psychosurgery and the gravity of the psychosurgery itself. It is probable that this type of analysis would not have been
possible within the established framework of the informed consent doctrine.
However, as the case represents a departure from this familiar approach, it
may not serve as the definitive answer to the issues posed by psychosurgery
on detained populations. For this reason, legislation in this area, on a national or state level, may be necessary.
Il1.
THE PROPOSED LEGISLATION
Portugal outlawed psychosurgery in 1936.80 The U.S.S.R. outlawed
psychosurgery in 1951.81 In America, such legislation was first proposed
on a national level in 1900. A senate bill "For the Regulation of Scientific
Experiments Upon Human Beings '8 2 died in committee. Seventy-three years
later, a similar bill has been introduced in Congress. House Bill 68523
would expressly prohibit all types of brain surgery intended to alter human
behavior. The punishment for violation would be a ten thousand dollar
fine. While no action has yet been taken on this bill, two other less rigid
resolutions have been introduced in the Senate. One would establish a national human experimentation board to investigate the problem and to offer
guidelines for experimental procedures.8 4 In addition, a two year moratorium would be placed on all psychosurgical operations. The second bill
in the Senate would deny federal funds to any organization, institution, hos85
pital, or foundation involved in activity where human subjects are at risk.
This activity would include any research where a human is exposed to the
possibility of physical, psychological, or sociological harm. These two bills
are presently detained in committee.
A more moderate proposal has been offered by the Institute of Society, Ethics, and Life Sciences at Hastings on the Hudson. It would permit
experimental psychosurgery only in cases of demonstrable brain pathology
or abnormality. No experimentation on detained populations or children
would be legal. Certainly psychosurgery must be viewed as the treatment
of last resort and is only acceptable when all other treatments have failed.
If this proposal were legislatively adopted, it would be specific remediation
for the Kaimowitz problem.
80. Trotter, A Clockwork Orange in a California Prison, see note 12 supra.
81.
Id.
82. S. 3424, 56th Cong., 1st Sess. (1900).
83. H.R. 6852, 93d Cong., 1st Sess. (1973).
84. S. 934, 93d Cong., 1st Sess. (1973).
85. S. 878, 93d Cong., 1st Sess. (1973).
540
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LAW REVIEW
Any legislation in the psychosurgery area must balance the conflict
between the right of the individual to freedom of choice and the right of society to protection from criminal and antisocial behavior. Congress would
be an appropriate forum for a discussion of the sensitive political and
ethical questions involved. And a uniform federal standard, supplemented
by corresponding state legislation, would be preferable to a case by case
approach.
CANDACE J. FABRI